I resigned from a job in August 2017. I was placed on garden

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I resigned from a job in August 2017. I was placed on garden leave for my one month notice period. I was advised to take my remaining 7 days of annual leave during garden leave, which I did. However, after recalculating annual leave, my employer and I discovered I was entitled to 9 days AL. They are now saying that the 2 days owed will be applied retrospectively to my garden leave, even though I am no longer an employee, and I prefer to be paid for these two days. Am I able to insist on being paid instead?

I was sent a letter two days after being placed on Garden Leave setting out the terms, and it included the paragraph:"Please note any prorated holiday entitlement should be taken during this period of garden leave. You currently have 7 days outstanding. Accordingly, you should clear any holiday absence with Mr X in advance"Hope this helps.

Thank you. The employer cannot retrospectively assign leave because by law they have a legal duty to give you sufficient notice to take the leave. This is something that is defined under the Working Time Regulations 1998. They state that if an employer wanted an employee to take leave on specified dates, they must give the employee specifically told you that you have to take 7 days’ notice and gave you notice of that in advance, that is the length of holiday that you would have been required to take. If they later found out that you had extra holidays due to you, they cannot retrospectively attach them to the holidays already taken as they would not have satisfies the notice criteria required by law. If they found out whilst you were still employed by them and you still had enough time left to allow them to satisfy the notice period requirements (4 days’ notice for 2 days’ leave), then they could have asked you to take them whilst still employed there. However, if they only found out about this after your employment had terminated, you would be entitled to be paid for these days.

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Thank you, ***** ***** most helpful. As a final question, in terms of enforcing this should they continue to refuse, would you recommend following the ACAS procedure and using an Employment Tribunal, or do you think taking this to the Small Claims Court as a breach of contract is a better option? I understand there are time limits and a more convoluted process attached to the Employment Tribunal route, and of course costs associated with raising a Small Claim at court.

You cannot actually make a claim for holiday pay in the small claims court any more so it will have to be the tribunal route. It is free at least...

As you noted, before a person can make a claim in the employment tribunal, they would be required to participate in mandatory early conciliation through the Advisory Conciliation and Arbitration Service (ACAS).

The purpose of this process is to allow ACAS to mediate between the claimant and respondent to agree on an out of court settlement in order to avoid the need for legal action in tribunal. The respondent does not have to engage in these discussions, or if they do and the talks are unsuccessful, the claimant will be issued with a certificate allowing them to make a claim.

However, if a settlement is reached, the claimant would agree not to proceed with the claim in return for the agreed financial settlement. Other terms can also be agreed as part of the settlement, such as an agreed reference.

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